Summary: Lounge
and restaurant worker had history of back pain. On June 20, 1995, an orthopedic
surgeon recommended surgery, based on a diagnosis of a herniated disc
and degenerative disc disease. On June 24, 1995, only four days later,
claimant slipped and fell at work. The insurer accepted liability for
the fall and began paying temporary total disability benefits. Claimant
needs surgery, which is not disputed. The insurer refuses to pay for surgery
or for an impairment award following surgery. Three physicians agree that
without surgery claimant is totally disabled and not likely to improve
in the foreseeable future. Prior to the fall, she was able to work, although
with pain. The insurer's refusal is based on the fact that there appears
to be no difference in an MRI taken before the fall and after. An orthopedic
surgeon and a neurosurgeon, however, agreed that claimant permanently
aggravated her low-back condition during the fall, even though no significant
change appears on the post-injury MRI.

Held: The back
surgery is compensable. The neurosurgeon persuasively testified that even
a small change in the extent of nerve root constriction, not apparent
on an MRI, could significantly increase pain. Physician who opined the
fall did not cause a permanent aggravation conceded he discounted claimant's
statements that her pain and disability permanently increased following
the accident. While a physician can appropriately consider a claimant's
veracity when making diagnoses and treatment recommendations, the Court
must make its own independent determination of claimant's credibility.
In this case, the Court finds claimant credible. Her credibility is bolstered
by evidence that she was a hard worker prior to the injury, even with
her back condition, and her testimony, supported by two physicians, that
she cannot now work. Claimant is entitled to surgery as a reasonable primary
medical service. She will be entitled to an impairment award following
surgery if a physician issues an impairment based on her low-back condition.
Penalty and attorneys fees are also awarded where there was overwhelming
evidence that the June 24 accident caused increased, disabling pain to
claimant.

Topics:

Constitutions, Statutes,
Regulations and Rules: Montana Code Annotated: section 39-71-611, MCA
(1993). Attorneys fees awarded where insurer unreasonably refused
to pay for back surgery although overwhelming evidence indicated claimant's
accident caused increased, totally disabling back pain. Reliance on
fact that pre- and post-accident MRIs were the same, and fact that surgery
had been recommended prior to the accident, was not reasonable where
claimant and physicians made clear her pain increased and total disability
ensured, where she had previously been working.

Constitutions, Statutes,
Regulations and Rules: Montana Code Annotated: section 39-71-2907, MCA
(1993). Penalty awarded where insurer unreasonably refused to pay
for back surgery although overwhelming evidence indicated claimant's
accident caused increased, totally disabling back pain. Reliance on
fact that pre- and post-accident MRIs were the same, and fact that surgery
had been recommended prior to the accident, was not reasonable where
claimant and physicians made clear her pain increased and total disability
ensured, where she had previously been working.

Attorney Fees: Cases
Awarded. Attorneys fees awarded where insurer unreasonably refused
to pay for back surgery although overwhelming evidence indicated claimant's
accident caused increased, totally disabling back pain. Reliance on
fact that pre- and post-accident MRIs were the same, and fact that surgery
had been recommended prior to the accident, was not reasonable where
claimant and physicians made clear her pain increased and total disability
ensured, where she had previously been working.

Attorneys Fees: Unreasonable
Denial or Delay of Payment. Attorneys fees awarded where insurer
unreasonably refused to pay for back surgery although overwhelming evidence
indicated claimant's accident caused increased, totally disabling back
pain. Reliance on fact that pre- and post-accident MRIs were the same,
and fact that surgery had been recommended prior to the accident, was
not reasonable where claimant and physicians made clear her pain increased
and total disability ensured, where she had previously been working.

Benefits: Medical Benefits:
Surgery. Back surgery was compensable, and penalty and attorneys
fees ordered against insurer, where overwhelming evidence indicated
claimant's slip and fall caused increased, totally disabling back pain.
Insurer's reliance on fact that pre- and post-accident MRIs were the
same, and fact that surgery had been recommended prior to the accident,
was not reasonable where claimant and physicians made clear her pain
increased and total disability ensured and she had previously been working.

Medical Conditions (By
Specific Condition): Herniated Disk. Back surgery was compensable,
and penalty and attorneys fees ordered against insurer, where overwhelming
evidence indicated claimant's slip and fall caused increased, totally
disabling back pain. Insurer's reliance on fact that pre- and post-accident
MRIs were the same, and fact that surgery had been recommended prior
to the accident, was not reasonable where claimant and physicians made
clear her pain increased and total disability ensured and she had previously
been working.

Penalties: Insurers.
Penalty awarded where insurer unreasonably refused to pay for back surgery
although overwhelming evidence indicated claimant's accident caused
increased, totally disabling back pain. Reliance on fact that pre- and
post-accident MRIs were the same, and fact that surgery had been recommended
prior to the accident, was not reasonable where claimant and physicians
made clear her pain increased and total disability ensured, where she
had previously been working.

Witnesses: Credibility.
While a physician can appropriately consider a claimant's veracity when
making diagnoses and treatment recommendations, the Court must make
its own independent determination of claimant's credibility.

This case came for trial on
November 6-7, 1996, in Billings, Montana. Petitioner, Deborah (Evans)
Brian (claimant), was present with her attorney, Mr. James G. Edmiston.
Respondent, State Compensation Insurance Fund (State Fund), was represented
by Ms. Ann E. Clark.

Exhibits: Exhibits
1 through 22 were stipulated into evidence.

Witnesses and Depositions:
Claimant and Tiffany Jaeger were sworn and testified. The testimony of
Dr. Fred McMurray, Dr. William Shaw and Dr. Peter Teal was taken at their
respective offices.

Issues Presented: (1)
Whether the insurer is liable for claimant's back surgery; (2) whether
it is also liable for any impairment rating for claimant's low-back condition;
and (3) whether claimant is entitled to attorney fees, costs and a penalty.

No transcript of the trial
has been prepared.

Having considered the Pre-Trial
Order, the testimony at trial, the demeanor and credibility of the witnesses,
the exhibits, and the arguments of the parties, the Court makes the following:

Findings of Fact

1. Claimant is forty-three
years old and resides in Billings, Montana.

2. She has a well documented
history of preexisting back problems, including pain in her left leg which
radiated into her ankle and foot. On January 6, 1995, an MRI disclosed
a "[h]erniated nucleus pulposus L4-L5 level midline and to the left."
(Ex. 10 at 7.) The imaging also disclosed a "centrally protruding disk"
at the L3-L4 level. (Id. at 6.) Her low-back and left leg pain
were consistent with a herniated disk at the L4-L5 level.

3. Claimant was referred to
Dr. Peter Teal, a board certified orthopedic surgeon. Dr. Teal examined
claimant on June 20, 1995. At that time he diagnosed a "[h]erniated lumbar
disc, L4-5" and "[d]egenerative disc disease, L3-4, 4-5, 5-1." (Ex. 7
at 1.) He recommended surgery, specifically a "laminotomy disc excision
at L4-5 on the left side." (Id. at 2.)

4. Doc and Eddy's, a lounge
and restaurant in Billings, hired claimant in April 1994. Up until the
time of the industrial accident mentioned hereinafter, she worked between
thirty-eight and fifty hours a week. During the period of her employment
she only missed a few days of work on account of medical appointments
and back pain.

5. Although claimant was able
to work, she experienced continuous pain. Thus, on June 20, 1995, she
agreed to Dr. Teal's surgical recommendation. On that same date, Dr. Teal
also recommended that, pending surgery, her job be modified "so she can
spend less time on her feet, have more resting time, perhaps 15 minutes
out of the hour on her feet." (Id.)

6. On June 24, 1995, claimant
slipped and fell at work. In falling she did "the splits." (Id.)

7. Claimant thereafter submitted
a claim for workers' compensation.

8. At the time of claimant's
slip and fall, Doc and Eddy's was insured by the State Fund. The State
Fund accepted liability for the claim.

9. Claimant was unable to return
to work after her slip and fall of June 24, 1995, and is presently totally
disabled.

10. Since June 24, 1995, and
continuing to the present time, the State Fund has paid claimant temporary
total disability benefits. That payment constitutes an acknowledgment
on the part of the State Fund that since June 24, 1995, the claimant has,
in fact, been totally disabled on account of her June 24 industrial accident.

11. Claimant currently needs
low-back surgery. While that surgery is considered elective, all three
physicians who testified in this proceeding agree that surgery is warranted.
Claimant does not suffer from severe neurological loss, for example loss
of bladder or bowel control, which would require emergency surgery, however,
all three physicians agree that claimant's current condition totally disables
her from working and that without surgery her condition is unlikely to
improve in the foreseeable future.

12. Through her petition to
this Court, claimant seeks a determination that the State Fund is liable
for the proposed surgery despite the fact that surgery was recommended
prior to her industrial accident.

13. On an objective basis there
has been no significant change in claimant's condition since June 20,
1995. A new MRI study done in March 1996, is essentially identical to
the one done in January 1995, although Dr. Shaw read the MRI as showing
somewhat more pronounced herniation. However, claimant's pain and disability
have both increased.

14. Both Dr. Peter Teal and
Dr. Fred McMurray, a neurosurgeon who examined claimant in March 1996,
agree that despite the absence of any significant change in claimant's
MRI, she nonetheless permanently aggravated her low-back condition when
she slipped and fell on June 24, 1995. Dr. McMurray testified that claimant
may have suffered additional physical damage as a result of the fall even
though the additional damage is not disclosed on the MRI. He testified
that claimant's left nerve root at the L4-L5 level was already constricted
prior to the June 24 incident and that additional constriction, even though
small and not evident in imaging, could cause a significant increase in
pain. His testimony was credible and persuasive.

15. Dr. Shaw, who opined that
claimant had not suffered a permanent aggravation of her condition, agreed
that "no science" can definitively determine whether or not claimant in
fact suffered a permanent change in her condition as a result of the June
24 industrial accident. He testified that in reaching his opinion that
she did not suffer a permanent aggravation he considered (1) claimant's
reports that her pain is worse, (2) her inability to continue working,
(3) a history of symptoms waxing and waning, (4) her overall presentation
of objective clinical findings, e.g., straight leg raising results, (5)
the MRI findings, (6) the fact that surgery was elective both before and
after the incident, and (7) the general course of her symptoms, which
he felt was generally consistent with her pre-accident condition.

16. Dr. Shaw was part of a
medical panel which, at the request of the insurer, performed an independent
medical examination of claimant. Dr. Robert S. Schultz, an orthopedic
surgeon who participated in the panel examination, indicated in his written
report that claimant "had pre-existing lumbar spine disease that was symptomatically
exacerbated by her injury of June, 1995." (Ex. 18 at 10.) In light of
the fact that at least some physicians use exacerbation to denote a temporary
rather than permanent aggravation of a pre-existing condition, the Court
is unable to read Dr. Schultz's statement as directly supporting a finding
of permanent aggravation. The other panel physicians did not address the
issue in their individual reports. (Ex. 18.)

17. The State Fund asked the
panel to address three questions in its panel report. The questions were:

1) Based on the medical records,
Ms. Evans (Brian) was scheduled for surgery before our injury occurred.
Her condition pre-existed our injury, however, what will it take to get
Ms. Evans back to "pre-injury status?"

2) Did the slip and fall at
work hasten or increase the need for surgery?

3) Based on the MRI done in
January 1995 and July of 1995, it appears there is no significant
change. Would you agree that the incident did not result in additional
injury?

It should be noted that Ms.
Evans' pre-existing back condition was the result of a non-industrial
injury.

(Ex. 18 at 7, first emphasis
in original, second emphasis added.)

18. As can be seen from the
questions, they were phrased to suggest, first, that there was no significant
change in claimant's condition following her June 1995 injury and, second,
that in determining whether there was an aggravation the panel should
look at the objective findings, specifically the MRI.

19. Not surprisingly, in reaching
its determination that the June 1995 injury did not significantly change
claimant's condition, the panel relied on the objective findings and disregarded
the subjective changes in her condition, observing:

There is no way to measure
either her subjective complaints or her ability to function in the work
place. Therefore, there is no scientific recommendation
that we can make to "get her back to pre-injury status."

(Ex. 18 at 24, emphasis added.)
Specifically addressing the aggravation issue, as phrased by the State
Fund, the Panel responded:

3) Based on the MRI done
in January 1995 and July 1995, it appears there is no significant change.
Would you agree that the incident did not result in additional injury?
As noted above, there are no objective indications of change in the
historical reports of symptoms, physical findings, or imaging studies.
The only indicators of possible additional injury are the reports of
increased pain and diminished functional capacity.

It is noted that there has
been progression in MRI findings between July 25, 1995 and March 14,
1996. There is no scientific way to attribute these changes to a specific
incident. Specifically, there is no way to determine, to a reasonable
degree of medical certainty, the extent, if any, to which the work-related
incident of June 1995 or the motor vehicle accidents of August and December
1995 may have contributed to this progression.

(Id. at 24-25.)

20. In his testimony at trial,
Dr. Shaw conceded that in concluding that claimant did not suffer a permanent
aggravation of her condition he discounted her statements that her pain
and disability permanently increased following the June 1995 incident.
He noted that her reports were inconsistent. In effect he made a judgment
concerning her credibility.

21. The Court agrees that it
is appropriate for a physician to consider inconsistencies in a patient's
history and to make judgments concerning the accuracy and the veracity
of the history provided by the patient. Credibility judgments in some
cases may be essential to appropriate diagnosis and treatment. However,
where credibility is an issue, the Court must make its own independent
determination concerning the claimant's credibility.

22. The evidence supporting
claimant's contention that her symptoms permanently increased following
her June 24, 1995 fall is overwhelming. Up to that time she was able to
work, albeit in pain. Her employer reported that she was hardworking and
overall a good employee. Dr. Teal's records reflect that she was genuinely
desirous of and willing to attempt a return to work in late 1995. Not
one of the physicians who examined claimant suggests that she was able
to return to work at any time after the June 24, 1995 incident. While
claimant may be an imperfect medical historian, no evidence was mustered
which would support a finding that since the June 24, 1995 injury she
has deliberately exaggerated her symptoms. I therefore find that claimant's
pain and disability permanently increased as a result of her June 24,
1995 industrial accident and that the accident permanently aggravated
her preexisting condition. In light of her increased pain, her total disability,
and her decreased ability to perform ordinary activities, I also find
that the indications for surgery are more compelling now than prior to
June 24, 1995.

23. The State Fund's continued
denial of liability for claimant's surgery is unreasonable. Claimant is
not required to present objective evidence, such as MRI findings, to prove
that her condition worsened as a result of her fall. (Dr. Shaw opined
that the March 1996 MRI showed a more pronounced herniation in comparison
to the January and July 1995 MRIs, thus providing objective evidence of
a worsening of the physical findings, but was unable to attribute the
increased herniation to the accident.) Moreover, in continuing to pay
claimant temporary total disability benefits up to and including the day
of trial, the State Fund conceded, and properly so, (1) that claimant
is in fact unable to work and (2) that her disability is attributable
to her industrial accident. Thus, it has conceded that the industrial
accident worsened her condition. The evidence that the worsening is permanent
is overwhelming in light of the medical evidence that claimant's condition
will not improve, and that she will not be able to return to work, absent
surgery. It should have been reasonably clear to the State Fund at least
by March 1996, following Dr. McMurray's examination and recommendation,
that surgery was necessary and related to the injury.

24. At trial the State Fund
raised the possibility that two automobile accidents in late 1995 aggravated
claimant's preexisting condition. However, there was no medical testimony
supporting such a conclusion.

25. Dr. Shaw pointed out in
his testimony that further delay in surgery may adversely affect the surgical
outcome. As he poignantly stated, claimant needs surgery and someone needs
to step up, accept responsibility for the surgery, and get the job done.

26. Claimant has not previously
received workers' compensation benefits on account of her low-back condition.

CONCLUSIONS OF LAW

1. Claimant's industrial accident
occurred on June 24, 1995. Pursuant to the rule that the law in effect
at the time of the injury applies, Buckman v. Montana Deaconess Hospital,
224 Mont. 318, 321, 730 P.2d 380, 382 (1986), the 1993 version of the
Workers' Compensation Act applies.

2. The State Fund has accepted
liability for this claim and continues to pay temporary total disability
benefits on an undisputed basis. In doing so, the State Fund concedes
that claimant in fact suffered an industrial injury on June 24, 1995,
that her temporary total disability is "supported by a preponderance of
medical evidence," § 39-71-701(2), MCA (1993), and that her disability
is the result of her industrial injury.

3. Pursuant to section 39-71-704(1)(a),
MCA (1993), claimant is entitled to "reasonable primary medical services
for conditions resulting from the injury for those periods as the nature
of the injury or the process of recovery requires." "Primary medical services"
are those services "prescribed by a treating physician, for conditions
resulting from the injury, necessary for achieving medical stability."
§ 39-71-116(21), MCA (1993). "Medical stability" means "maximum healing,"
which is "a point in the healing process when further material improvement
would not be reasonably expected from primary medical treatment." § 39-71-116(14),
MCA (1993). The medical testimony shows that claimant may reasonably be
expected to benefit from surgery. Thus, she has not reached medical stability
and the State Fund is liable for the surgery unless her condition
is not the result of her industrial injury.

4. Under long established court
precedents, Welch v. American Mine Services, Inc., 253 Mont.
76, 81-82, 831 P.2d 580, 584 (1995), as well as by statute, § 39-71-407(2)(a)(ii),
MCA (1993), insurers are liable for aggravations of preexisting medical
conditions. The aggravation must be material and significant. Caekaert
v. State Compensation Mut. Ins. Fund, 268 Mont. 105, 112, 885 P.2d
495, 499 (1994). Evidence that a specific incident caused disability,
i.e., an inability to work, where the claimant had previously been able
to work, is a strong indicator that the incident aggravated the preexisting
condition. Shepard v. Midland Foods, Inc., 205 Mont. 146, 153,
666 P.2d 758, 762 (1983). Even lacking specific objective findings attributable
to the industrial injury, medical opinions relating increased pain and
resulting disability to the injury, along with an explanation as to how
the incident may have physically caused the increased pain, is sufficient
to establish an aggravation. See Houts v. Kare-Mor, Inc., 257
Mont. 65, 69, 847 P.2d 701, 703-704 (1993); Lakey v. Kerrian's, 228
Mont. 139, 141-42, 741 P.2d 416, 417-418 (1987). Claimant in this case
has established that she suffered a permanent, significant aggravation
of her preexisting condition.

5. It is reasonably clear that
under the Montana Workers' Compensation Act the claimant is not required
to prove she suffered a permanent aggravation of her preexisting condition
by objective, physical findings specifically related to her industrial
accident. As the medical testimony in this case points out, medical science
has not yet reached the point where every instance of physical damage
to the human body can be objectively imaged. The State Fund's insistence
on such objective evidence was unreasonable in light of overwhelming evidence
that the June 24, 1995 industrial accident caused increased, disabling
pain. In continuing to pay temporary total disability benefits to claimant,
the State Fund conceded that her current disability, and thus her current
condition, is attributable to the accident. Indeed, it had no substantial
basis to conclude otherwise. Thus, I have found that the State Fund's
denial of responsibility for surgery is unreasonable. Based on that finding,
claimant is entitled to attorney fees and a penalty. §§ 39-71-611 and
-2907, MCA (1993).

6. Since she has prevailed,
claimant is entitled to her costs in an amount to be determined at a later
time.

7. The State Fund is liable
for any impairment rating attributable to claimant's low-back condition.
The employer takes its workers as it finds them, preexisting conditions
included. Larson v. Cigna Ins. Co., 271 Mont. 98, 103, 894 P.2d
327, 330 (1995). As previously held, the employer is responsible for aggravations
of a preexisting condition. Section 39-71-703(5), MCA (1995), provides
that an award payable for a subsequent injury to the same part of the
body "may not duplicate any amounts paid for the previous injury or injuries."
Thus, had claimant received a previous impairment award, that previous
award would have to be deducted from any impairment award determined to
be due her on account of her present condition. However, she has not received
any previous impairment award, so there is nothing to deduct.

JUDGMENT

1. The State Fund is liable
for, and shall pay for, the low-back surgery recommended by Drs. Teal
and McMurray should one or both of those doctors adhere to their recommendation
of surgery following further examination of claimant and should claimant
elect to undergo surgery.

2. The State Fund is liable
for the full amount of any impairment rating attributable to claimant's
low-back condition.

3. The State Fund shall pay
claimant a penalty in an amount equal to 20% of the cost of her surgery
and follow-up care.

4. The State Fund shall pay
claimant's attorney fees in an amount to be determined in accordance with
ARM 24.5.343.

5. The State Fund shall pay
costs in an amount to be determined in accordance with ARM 24.5.342. The
claimant shall have 10 days from the date of this judgment in which to
submit an affidavit of costs. The State Fund shall thereafter have ten
days in which to object to any item.

6. This Judgment is certified
as final.

7. Any party to this dispute
may have 20 days in which to request a rehearing from these Findings of
Fact, Conclusions of Law and Judgment.